SUBJECT: CONSTITUTIONAL LAW II
LESSON 1
THE LEGISLATURE
Nature and Meaning
Legislative bodies are representative organs expressing the will of the people as the sovereign. They form an integral component of any constitutional government.
Legislative bodies are anchors of the peoples’ will which is transferred into the will of the State through law and policy. Once the State legislates, it expresses the sovereign will of its citizens through such law.
These bodies are refereed to using different terminologies across various jurisdictions. In the British tradition, it is called Parliament. In other jurisdictions, they are referred to as Congress or simply the Assembly.
By whatever name they are called, the main function of legislative bodies is to legislate or make law. This is either by enacting new laws or amending existing ones. Hence the organs are generally also called the Legislature.
Apart from lawmaking, legislative arms of government perform other functions. These include oversight. For example, the Kenyan Legislature is mandated to oversight other arms of government in respect of their expenditure of public finances. The various functions of the legislature shall be examined shortly.
Types of Parliamentary Systems
Unicameral or Bicameral
This relates to the structure of Parliament at national level. The structure may provide for a single or two chambers Parliament.
A centralized government often adopts a single chamber Parliament. On the other hand federal or quasi federal systems of government usually adopt a two-chamber Parliament. The essence here is to have Senate addressing the legislative agenda for the county units.
Centralized or De-centralized
Parliaments are often designed along the system of government that is adopted by a country. Where we have a centralized government, the country will have a centralized Parliament. In this sense, Parliament is not devolved. An example of this form of Parliament is the Parliament Kenya had prior to the 2010 Constitution.
Where we have a federal or semi federal system of government, the powers of the legislature are spread to sub-state level legislatures. These legislatures are empowered to legislate for their respective regions. For instance, under Article 185(2) of the Constitution 2010, the county assemblies are empowered to legislate in respect of matters touching on their areas of influence.
Parliamentary or Presidential Executives
A country may adopt a Presidential or Parliamentary Executives system of government as a matter of constitutional design. The former is referred to as a presidential system of government whilst the latter is a Parliamentary system of government.
A Presidential system of government is one in which the executive branch exists outside Parliament. Members of the executive are not derived from the legislature and the President is directly elected by the people without the need for electing him as a member of the legislature.
In a presidential system Parliament is distinct from the Executive. Therefore, the President does not propose bills for passage by Parliament. However, he/she retains power to veto laws formulated by Parliament and require revision of them before his/her assent is given. This power notwithstanding, the legislature has power, exploiting the supermajority principle, to override the veto.
In Kenya, the Constitution creates a presidential system of government in which both the President and the cabinet are not members of Parliament. This draws a clear severance of the linkages between Parliament and the Executive.
Conversely a parliamentary system of government the head of government and cabinet are also members of the legislature. The president, even when directly elected by the electorate, is both in the legislature and the executive. The president as well appoints his cabinet from among members of the legislature. An example of this is the arrangement of government under the 1969 Constitution of Kenya.
In other jurisdiction, the legislature actually elects the head of government. A typical example here is Britain. This type of government allows for some fusion between the executive and the legislature.
The Concept of Sovereignty of Parliament
The concept of sovereignty of Parliament is usually associated with the British constitutional tradition. Underlining it is the theory of monopoly of Parliament in the law making process. It underscores the fact that the repository of legislative power is Parliament and once it makes laws, they must be unconditionally upheld by the other organs of government.
Also referred to as parliamentary supremacy, the notion of parliamentary sovereignty is associated with the British tradition because of its absence of a written constitution. This assertion may however be misleading. The accurate position is that Britain’s constitution is contained in a series of statutory provisions and traditions. It is therefore perhaps right to think of it as written albeit in various instruments. This notwithstanding, the general and popular description is that Britain has an unwritten constitution.
The critical thing is that in this tradition, there is no law that proclaims its supremacy over the institution called Parliament. Therefore, as a legislative organ, Parliament makes laws which bind all other organs of government. No other institution, including courts of law, can question the validity of the laws as passed by parliament.
This is contradistinguished with states which have written constitutions that establish all organs of government including parliament. In effect, where the constitution does this, it allocates and constrains the power of these state organs. The constitution then becomes sovereign and supreme. All organs, including parliament must exercise their mandate strictly within the confines of the constitution.
Usually, the constitution will provide for invalidation of actions by any state organ that exceeds the powers granted to it. This includes parliament. This power is often conferred on the judiciary. The judiciary will be empowered to review the exercise of functions by all other arms of government and strike down those that are in excess of their mandate. This power is called the power of judicial review. In such case, the doctrine of sovereignty of parliament has no application.
Although Kenya borrowed partially its government design from Britain, one critical departure from the British tradition is the promulgation of a written constitution that establishes organs of government. The constitution also proclaimed itself as supreme. The doctrine of sovereignty of parliament has therefore had no application to Kenya’s constitutional design from independence.
The concept of sovereignty of the constitution in contradistinction with sovereignty of parliament provides a centre for interplay between the Judiciary and Parliament in terms of the doctrines of separation of powers and checks and balances. By it, the constitution confers on the Judiciary the power of judicial review which mandates it to review and declare invalid any laws which conflict the the constitution. In this way, the Judiciary plays a critical role in controlling the legislative mandate of Parliament.
Major Functions of Parliament
Representation
Parliaments across the world are viewed as people’s representatives. Members of Parliament are appointed or elected to represent various groups and interests. They articulate the needs of their constituents in government. They are therefore considered as the mouthpiece of those on whose behalf they act.
Representation here involves listening to the views of one’s constituents and articulating them on the floor of the House. In this sense, it has been argued that Parliament is perhaps one of the closest and most accessible arms of government to the citizen. This is perhaps correct considering that parliamentary activities are often conducted in open plenary where citizens and the media have full access.
In relation to the Kenyan Parliament, several provisions underpin its representative nature. These are:-
Article 94(2) of the Constitution which proclaims Parliament as representing the will of the people and exercising their sovereign power.
Article 95(1) of the Constitution which declares the role of the National Assembly as one of representation of the people of the constituencies and special interests in the House. Article 95(2) of the Constitution vests the National Assembly with the mandate to deliberate on and resolve
Article 96(1) which declares Senate as representative of the Counties and as serving and protecting the interest their governments.
Legislation
The Legislature’s other major function is to make law to govern society. Lawmaking process is usually in the form of creation of legal norms. It includes passing of new laws and as well amending existing ones. In law making, an idea of law is worked through various stages towards transforming it into a piece of legislation.
Law making is usually a rigorous process. It seeks to give norms the force of law that enables their enforcement by other institutions of government. The process is undertaken first preparing a bill. The bill is then scrutinized before being adopted and published into law.
The primary position in law is that legislative power vests exclusively in Parliament. However, the law recognizes that Parliament may delegate this power to other organs of government. Where this is done, article 94(6) requires that the limits of the authority be clearly defined.
Article 94(1) of the Constitution of Kenya vests legislative power in Parliament. In addition Parliament has some limited powers to review and amend sections of the Constitution by virtue of article 94(3) of the Constitution.
Article 95(3) of the Constitution empowers the National Assembly to enact laws in accordance with the provisions of the Constitution. By virtue of Article 96 (2) of the Constitution, Senate is also empowered to pass legislation touching on county governments in consultation with the National Assembly.
The legislative mandate of Parliament provides one of the critical areas for interplay between the Executive and the Legislature. In a sense, it pays homage to the twin theory of separation of powers and checks and balances. While, the core function of the Executive is to make and implement policies in the public realm, implementation of these policies must be backed by laws. And it falls on the Legislature to make these laws. In a sense therefore, the Legislature plays a critical role in checking the mandate of the Executive by designing laws that will guide implementation of policies by the latter.
Oversight
In addition to the foregoing functions, Legislatures also play the critical role of overseeing the execution of functions and expenditure of the other government organs. Oversight is a critical devise through which Parliament exercises its mandate of checks and balances over other organs of government. Through this, Parliament is able to ensure functions of other government organs are executed in the manner provided for by law.
Article 94(4) of the Constitution empowers Parliament to protect the Constitution and promote democratic governance of the Republic. Under article 10 of the Constitution, one of the national values is to ensure accountability. Parliament ensures protection of this constitutional value through its oversight role.
Article 95(4) and (5) the National Assembly plays a critical oversight role on national finances and reviews the conduct in office of the President, the Deputy President and other state officers. The National Assembly has power to initiate removal from office of these officers.
Similarly Senate is empowered under Article 96(3) to exercise oversight over national revenue allocated to county governments. And under Article 96(4) it participates in the oversight of state officers including participating in decisions touching on the removal of the President and his deputy.
Other Functions
Promotion of democratic governance
This is through ensuring expansion and protection of the democratic space in the country. This can be done through discharging the other functions discussed earlier. For instance, Parliament is by virtue of article 100 of the Constitution required to pass legislation that will facilitate inclusion of marginalized groups into governance structures in the country. In this way Parliament uses its legislative mandate to promote democratic governance in Kenya.
Appropriation of Public Funds for Expenditure
This is essentially the budgetary approval process. This power is provided for under Article 95(4) of the Constitution. Under the Article, the power lies with the National Assembly to allocate public funds for expenditure between the two levels of government and as well other state organs. It does appear that residual budgetary powers also lie with the Senate in respect of expenditure by devolved governments by virtue of Article 96(3) of the Constitution.
The budgetary process results in authorization of expenditure of public resources by state organs to meet public objects. This is another area where the Legislature plays its central role of checking and balancing the exercise of power by the Executive. Approvals for expenditure come in the form of the Appropriation Acts and approval of taxations to raise funds comes in the form of the Finance Acts. The fact that parliament must sanction these processes is critical in checking the exercise of Executive power in this respect.
Approval of Declarations of War and States of Emergency
This is a power reserved for the National Assembly. Whilst the President declares war and a state of emergency, this can only be validated by approval of the National Assembly. In a sense, this power to the National Assembly is also mean to check the exercise of executive powers in this regard.
HISTORY OF THE LEGISLATURE IN KENYA
Pre-Independence
The institution of the Legislature first comes into the history of Kenya through the East Africa Order in Council of 1906 which made provision for the establishment of two critical governance institutions: the Executive Council and the Legislative Council. Even then, the Legislative Council was purely for reasons of advancing the interest of the settler community who had demanded for a body through which they could raise their grievances. Indeed, there was no representation of Africans in the Council until 1944.
The core functions of the Council were to make laws and provide representation. Even then, the Legislative Council was still severely constrained in its mandate. First, the British government reserved powers to make laws for the colony. Second, the Governor General retained substantial control over the Council. The Governor served as the leader of the Legislative Council with the speaker serving as his principal assistant.
The structure of the Legislative Council remained relatively the same throughout the colonial period with minor changes to it mainly geared to enlarging representation of non-Europeans in the body. However, as the country neared self rule, substantial changes to the structure of the Legislative Council were made. It was redesigned along the Westminster style of Parliament. The incoming independence constitution provided for:-
A national legislature with two houses: Senate as the upper house and the House of Representatives as the lower house.
Regional assemblies popularly referred to as majimbos.
Members of the Legislature were to be selected through a popular election by the electorate. The Governor would then appoint a Prime Minister from the Legislative Assembly. This was the leader of the majority. The Governor would also appoint his Ministers from members of the party from which the Prime Minister had been appointed. Together, the Prime Minister and Ministers would constitute the Cabinet which was collectively responsible to the Legislature.
The largest losing party in the Legislature will then take on the position of the official opposition with the mandate to form the shadow Cabinet. Their role in Parliament was to keep the government of the day on its toes with the hope of displacing it but only through constitutional means.
The Kenyan Parliament 1963-2010
Dual Westminster Model Legislature
On attaining its independence, Kenya embraced an entirely representative legislative body. The independence Constitution created a two-tier national legislature with the Senate as the upper house and the House of Representatives as the lower house.
The two houses shared legislative power at national level. While the Senate’s main role was to protect regional governments from undue interference by the central government, the House of Representatives focused on national legislation that applied across the regions.
Importantly, the majimbo system of government also created regional assemblies. These assemblies had legislative and oversight powers for the regions they served.
Unitary Legislature
However, several constitutional amendments gradually weakened and eventually scrapped this system of government. First, the regional governments were deprived of sufficient funds to run their agenda. Eventually, through the 1966 constitutional amendment, Senate was scrapped and its members moved to the National Assembly. As a consequence, by 1967 Kenya’s Parliament effectively converted from a bicameral to a unicameral Parliament.
This system of Parliament was to remain in place until the promulgation of the Constitution of Kenya 2010. They system essentially embraced a parliamentary system of government.
The system has been heavily criticized as having resulted in a weak Parliament which was effectively controlled by the Executive. As a result it has been observed that the legislature was most of the time, a mere rubber stamp of the Executive.
The Legislature Post 2010
The Constitution of Kenya brings with it an entirely new system of government with a new design of Legislature. The Constitution creates a devolved system of government with a total of 47 counties. Each of the counties has a county executive and legislature. This system of government is entrenched under chapter 11 of the Constitution. Like the independence Constitution, the 2010 Constitution allocates considerable legislative and executive powers to the county assemblies and executives respectively within their jurisdictions.
At national level and by dint of Article 93(1), the Constitution creates a bicameral Parliament with two houses; the Senate and the National Assembly. By Article 94, the Legislature is vested with the people’s sovereign power to legislate.
The National Assembly
It is comprised of 349 legislators and a speaker as an ex-officio member. Of this, 290 are elected on single member constituency basis. 47 are elected as county women representatives, each county constituting a single electoral constituency for this purpose. Finally, 12 other persons are nominated to serve special interest groups.
The National Assembly has various roles as discussed earlier in this lesson. These include:-
Representing people of the constituency and special interest groups on the floor of the house.
Deliberating and resolving issues that are of concern to the people.
Enacting legislation.
Budgetary process.
Oversight of other government organs including the President and his deputy.
Approval of declarations of war and states of emergency.
Senate
This consists of 68 members. 47 are directly elected from each of the 47 counties as single constituencies. 16 are women representatives nominated by political parties. 2 members represent the youth and 2 others represent persons with disabilities. The speaker is an ex-officio member.
The role of Senate includes:-
Representation and protection of the interests of counties.
Law making with focus on county laws.
Allocation of national revenue to county governments.
Oversight of county governments.
Oversight in respect of other state officers including the President and his/her deputy.
Qualification for Election as Member of Parliament and their Removal from Office
These are set out in the Constitution. Students are asked to acquaint themselves with the requirements. The point to take home here is that removal of Parliamentarians, whether through fresh elections or the right of recall, is an important tool to promote accountability in the legislature.
Law Making Process
This is undertaken through the passage of bills into law. The National Assembly can originate any bill for debate. These include bills proposing national laws and laws that will affect county governments.
Bills relating to county governments may however originate from either of the houses. They must then be debated and approved by both houses. There is however an exception in relation to money bills. All such bills must originate from the National Assembly, whether they affect county governments or not.
Bills on laws that do not touch on county government cannot be originated by Senate. They are exclusively generated by the National Assembly.
For bills that are to be debated by both houses, the bill is first debated by the house originating it. If passed, the speaker of the originating house then forwards it to the other house for debate. If passed without changes, the bill is returned to the speaker of the originating house who then passes it onto the President for assent within the prescribed time.
Where one house passes a bill but the other house rejects it, the bill is send to a mediation committee. Similar consideration attends a bill which is amended by one house and the amendments are declined by the originating house.
Presidential Assent
Bills approved by Parliament go to the President for assent. The President has 14 days to assent to the bill or return it to the house that originated it for re-evaluation.
Once returned the house has three options: it may revise the bill as recommended by the President and return it for assent; it may incorporate some but not all the corrections proposed by the President and resubmit the bill for assent; it may reject the recommendations for change entirely and resubmit the bill for assent. In the latter two scenarios, the decision of the house must be supported by two thirds of its members.
When returned, the President has 7 days to assent to and sign a bill into law. If he neglects to do so within the stipulated period of the bill being send back to him, it automatically becomes law.
Once assented to or deemed as assented to, the bill is published in the Kenya gazette as an Act of Parliament. It becomes law within 14 days of publication.
County Legislatures
These are part of the devolved government system under the constitution of Kenya 2010. Kenya has 47 County Assemblies that are distinct from one another. They are comprised of ward representatives also called Members of County Assembly (MCA’s) and the County Speaker as an -officio member. MCA’s are elected by registered voters at ward level. The County Assemblies also have special seats to bridge the two thirds gender, youth and persons with disabilities requirements.
Major Roles of County Assemblies
Law making
The Assemblies make laws at county level. The laws are to facilitate the proper functioning of the County Governments. These laws must not conflict with national laws.
Vetting of County Officials
The Assemblies vet nominees to county offices. These include members of the County Service Boards, county executive, county chief officers and the speaker.
Oversight
This is a critical function of the county assemblies. They oversight the county executive and as well other county departments and officers.
Budget Making
County Assemblies are involved in the making and approval of county budgets. By virtue of article 207 of the constitution, county assemblies must approve withdrawal and expenditure of funds by the county government.
Approval of County Borrowing
County Assemblies also approve borrowings by county governments. This is in addition to the guarantee for such borrowing by the national government.
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